220 So. 3d 1236
Fla. Dist. Ct. App.2017Background
- In 1999 Mark S. Stern purchased a mausoleum crypt from Heritage Manor Memorial Park in Boca Raton; sales representatives allegedly made material representations about the North Sanctuary (exclusively Jewish, specific high-end design features, and a preserved "chapel view").
- Heritage Manor later sold the cemetery to DFG Group (d/b/a The Gardens). Stern discovered changes and alleged misrepresentations after the sale.
- Stern sued Heritage Manor and DFG in 2012 asserting FDUTPA and related claims; Heritage Manor later settled and was dismissed from the case.
- Three years after filing, Stern sought to amend his complaint to proceed as a class action and to be class representative; the trial court certified three subclasses covering purchasers "from DFG or its predecessor" based on those representations.
- DFG appealed, arguing Stern lacked standing to represent a class against DFG because Stern purchased only from Heritage and DFG made no representations to him; DFG also argued it did not assume predecessor tort liability under the asset purchase agreement.
- The appellate court held Stern lacked standing to bring FDUTPA claims against DFG and that DFG was not liable for Heritage’s alleged tortious misrepresentations under the traditional successor-liability rules, reversed the class certification order, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to represent class under FDUTPA | Stern: He may represent purchasers injured by the same deceptive practices; class includes buyers from predecessor and successor. | DFG: Stern bought from Heritage, DFG made no representations to him and caused no injury; therefore Stern lacks standing to sue DFG. | Stern lacked standing; a class rep must have a live claim against the defendant. |
| Successor liability for predecessor’s FDUTPA torts | Stern: DFG liable for Heritage’s misrepresentations to class members (including Stern) after acquisition. | DFG: Asset purchase agreement did not impose tort liability; no exception to general rule of nonliability applies. | DFG not liable for predecessor’s torts; successor liability requires express assumption, de facto merger, continuation, or fraud — none present. |
| Validity of class certification | Stern: Certification appropriate because common issues of deception exist across purchasers. | DFG: Certification improper because class rep lacks standing and defendant cannot be bound by claims the rep does not personally have. | Class certification was erroneous and must be vacated because the representative lacked standing. |
Key Cases Cited
- Sosa v. Safeway Premium, Fin. Co., 73 So.3d 91 (Fla. 2011) (standing review is de novo and class-rep standing is a threshold inquiry)
- Rollins, Inc. v. Butland, 951 So.2d 860 (Fla. 2d DCA 2006) (FDUTPA consumer-damages elements: deceptive act, causation, actual damages)
- Bernard v. Kee Mfg. Co., 409 So.2d 1047 (Fla. 1982) (traditional rule limiting successor liability and the four exceptions permitting imposition of predecessor liabilities)
- Wooden v. Bd. of Regents of the Univ. Sys. of Ga., 247 F.3d 1262 (11th Cir. 2001) (a class representative must have standing to raise the claims of the class)